Citation Nr: 1718597
Decision Date: 05/25/17 Archive Date: 06/05/17
DOCKET NO. 12-26 718 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Entitlement to a disability rating in excess of 20 percent for hepatitis C.
2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: National Association of County Veterans Service Officers
ATTORNEY FOR THE BOARD
N. Peden, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1974 to February 1975.
These matters come before the Board of Veterans' Appeals (Board) from February 2011 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which denied entitlement to an increased rating for Hepatitis C and a TDIU. The Board remanded both issues in January 2015 for further development, specifically, to afford the Veteran a VA examination to determine current severity of his disability. That development has been accomplished, and the claims have now been returned to the Board for further action. See Stegall v. West, 11 Vet. App. 268 (1998).
FINDINGS OF FACT
1. For the entirety of the appeal, the Veteran's hepatitis C has not resulted in fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, requiring dietary restrictions or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period.
2. The Veteran's service-connected hepatitis C does not meet the percentage requirements for a schedular TDIU; and, the collective evidence suggests that his service connected hepatitis C does not preclude him from obtaining and retaining substantially gainful employment consistent with his education and vocational experience.
CONCLUSIONS OF LAW
1. For the entirety of the appeal, the criteria for a disability rating in excess of 20 percent for hepatitis C have been not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7354 (2016).
2. The criteria for a TDIU, for the entire appeal period, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.40, 3.41, 4.16 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and to Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).
The duty to notify has been met. See VA correspondence dated November 2010. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required.
As for the duty to assist, all identified and authorized records relevant to the matter have been requested or obtained. The available record includes available service treatment records, VA treatment and examination reports, and statements in support of the claims. The Veteran has not identified any additional records that should be obtained prior to appellate consideration. The evidence of record is sufficient for the Board's review. There is no evidence of any additional existing pertinent records. VA's duty to further assist the Veteran in locating additional records has been satisfied. See U.S.C.A. § 5103A; 38 C.F.R. §3.159 (2016).
When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. The VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate these claims would not cause any prejudice to the appellant.
II. Analysis
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.
It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2016). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
The Court has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Veteran is in receipt of a 20 percent disability rating effective as of November 2, 2010 for service connected hepatitis C. He contends that his disability warrants a higher rating.
Under the current rating criteria, hepatitis C is rated under
38 C.F.R. § 4.114 , DC 7354 (2016). Under DC 7354, a 20 percent rating is assigned for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id.
A 40 percent rating is assigned for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. Id.
A 60 percent rating is assigned for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. Id.
A 100 percent rating is assigned for serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id.
Use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); see also Malone v. Gober, 10 Vet. App. 539 (1997).
DC 7354 provides the following Note:
Note (2): For purposes of evaluating conditions under DC 7354, an "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id.
A VA examination report dated December 2010 reflects daily fatigue and malaise without anorexia. The examiner reported the Veteran's weight at 205 lbs. At this time, the Veteran reported one incapacitating episode which lasted seven hours within the twelve month period preceding the examination. A March 2015 VA examination reflected intermittent nausea, a current weight of 190 lbs., intermittent right upper quadrant pain, and no reported incapacitating episodes.
VA treatment records dated September 2013 note that the Veteran denied unintentional weight loss or gain or fatigue. The Veteran's weight was also recorded at 186.6 lbs. December 2013 treatment records reflect the Veteran as weighing 186.6 lbs. and being advised to lose weight. He also denied any complaints regarding hepatitis C. March 2015 reports reflect the Veteran's weight at 189.2 lbs. and are silent as to any complaints manifested by hepatitis C. Treatment records dated in September 2015 noted liver function testing was within normal limits.
A May 2016 VA mental disorders examination report reflects the Veteran's report that he weighed 247 lbs. three years ago and since his "appetite hasn't been right." The Veteran weighed 190 lbs. at the time of the examination.
Where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).
The Veteran's complaints of pain, fatigue, malaise, and weight loss are the types of symptoms that are readily amenable to lay diagnosis as they are subjective to the claimant; thus, the Veteran is competent to report his symptoms and their frequency. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Several treatment records note the Veteran's reports and detail his fatigue, right upper quadrant pain, malaise, and the frequency of his symptoms. Nothing in the record contradicts his statements about the foregoing, and his statements are generally consistent with his medical records.
However, the medical evidence of record contradicts his statements concerning weight change. The record reflects that the Veteran's weight was mostly stable, except for times when the Veteran was encouraged by medical practitioners to lose weight due to obesity. There are multiple occurrence reflecting that the Veteran was overweight or obese. December 2010, September 2013, March 2015, and May 2016 examination and treatment records reflect no abnormal weight loss throughout the appeal period. The Veteran's weight has fluctuated from 205 lbs. in December 2010 to 186.6 lbs. in September 2013 to 190 lbs. in March 2015 and May 2016. Put another way, while fatigue, and malaise, are certainly shown, and likely to be related to hepatitis C, the competent and credible evidence is against the finding that the Veteran has experienced anorexia with weight loss due to his hepatitis C. The more persuasive and probative evidence indicates that the Veteran has been overweight to obese and that any weight loss that the Veteran has had was the result of medical advice to lose weight.
The Board finds that the weight of the all the evidence of record demonstrates that the Veteran's service-connected hepatitis C was not productive of symptoms that more nearly approximated fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly. The criteria for a 40 percent rating have not been met.
The most probative evidence fails to show weight loss from hepatitis C. There has also been no indication of the presence of hepatomegaly (enlarged liver). Treatment records in December 2010, September 2013, and March 2015 reflect the Veteran denied further complications manifested by hepatitis C other than daily fatigue and malaise. There is also no evidence that the Veteran's hepatitis C has resulted in incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. To the contrary, VA treatment records during the appeal period also only reflect one incapacitating episode reported by the Veteran in December 2010.
The Board further finds that staged ratings are not warranted, as the Veteran's hepatitis C symptomatology has remained relatively stable throughout the appeal, even when resolving reasonable doubt in his favor as discussed above. Any increases in severity were not sufficient to meet the criteria for a higher rating for any distinct period on appeal. See Fenderson v, 12 Vet. App. at 126-27.
As a final matter, the Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, No. 15-2818 (Vet. App. March 6, 2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further action as to these matters is required.
III. TDIU
The Veteran seeks entitlement to TDIU asserting that his service-connected hepatitis C has rendered him unemployable. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the total rating is based on a disability or combination of disabilities for which the Schedule of Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (a).
The Veteran has been service connected for hepatitis C since March 1, 1975. A noncompensable (0 percent) rating was initially assigned. A 10 percent rating was assigned for the period of May 25, 2005 to November 2, 2010. A 20 percent rating has been assigned since November 2, 2010. There are no other service connected disabilities. Therefore, the evaluation for all service connected disabilities is 20 percent.
Accordingly, the schedular threshold percentage requirement for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16 (a) are not met in this case. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).
Even where, as here, the Veteran does not meet the schedular criteria for entitlement to a TDIU, a TDIU on an extraschedular basis may still be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and with consideration of the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321 (b), 4.16(b). According to 38 C.F.R. § 4.16 (b), it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of the VA Compensation and Pension Service for such extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). Bowling v. Principi, 15 Vet. App. 1 (2001).
Upon consideration of the evidence, the Board finds that a referral for TDIU is not warranted based on the hepatitis C disability. Although the record includes the Veteran's histories of not working and histories of symptoms associated with the hepatitis C, the overall evidence is not indicative of unemployability due to hepatitis C. The May 2016 VA examiner noted the Veteran's report of employment in 2004 with the city of Lansing, which lasted for six years, and his self-report of the same employment ending in 2006 and lasting for eight years. The Veteran reported his position was in maintenance and that he completed high school and some college. He also stated that his employment was terminated due to budget cuts, and he did not seek subsequent employment because he "didn't bother looking" and he "just lost interest in it". The Board acknowledges that the Veteran has previously asserted unemployability due to depression secondary to his service connected hepatitis C; however, this claim was denied in January 2015 and in September 2016.
In reaching the above determinations, the Board has carefully reviewed and considered the Veteran's statements regarding the severity of his hepatitis C. The competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.
The Board has determined that the most probative (persuasive) evidence that specifically addresses the question of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected hepatitis C during this appeal period weighs against the claim. Accordingly, entitlement to a TDIU due to service-connected hepatitis C is not warranted.
Finally, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims.
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ORDER
Entitlement to a disability rating in excess of 20 percent for hepatitis C is denied.
Entitlement to TDIU due to service connected disability is denied.
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs